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Steve Jobs, Bill Gates, and Mark Zuckerberg. All three are credited with creating some of the most successful businesses in the history of the Internet, but they also have something else in common: they got their start by innovating near the edge of the law.

If these titans of industry had faced the sort of overly aggressive prosecution that the late Aaron Swartz did, they could have been threatened with being locked away and branded felons before ever starting Apple, Microsoft, or Facebook. They might have even faced a ban against their use of computers, rather than using them to create hundreds of thousands of jobs.

Mark Zuckerberg and the Precurser to Facebook

Mark Zuckerberg, the billionaire founder of Facebook, recently defended the oft-maligned term “hacker,” recognizing that testing boundaries is a key part of innovation:

“The word “hacker” has an unfairly negative connotation from being portrayed in the media as people who break into computers. In reality, hacking just means building something quickly or testing the boundaries of what can be done. Like most things, it can be used for good or bad, but the vast majority of hackers I’ve met tend to be idealistic people who want to have a positive impact on the world.”

Zuckerberg may have been speaking from personal knowledge. In 2006, while a sophomore at Harvard, Zuckerberg created a website called “Facemash” which compared photographs of Harvard’s entire population, asking users to compare two photos and vote on who looked better. Zuckerberg allegedly got access to these photos by “hacking” into each of Harvard’s nine House websites and then collecting them all on one site. It’s not clear what this “hacking” was, but since the charges against him included “breaching security,” it may have fun afoul of the law.

What is known is that Zuckerberg claimed he only wanted a few people to see the site and, despite that, the site’s popularity exploded. He was called before the school’s disciplinary board and took down the website permanently due to privacy concerns, but was not forced to leave school. Most importantly for the rest of us, it appears that Harvard did not involve law enforcement in the matter and Zuckerberg was never prosecuted.

What Steve Jobs and Steve Wozniak Did Before Apple

Zuckerberg was following in the footsteps of the technology giants before him. Columbia Law Professor Tim Wu notes in the New Yorker that Apple co-founders Steve Jobs and Steve Wozniak, did acts that were “more economically damaging than, Swartz’s.” The two college roommates made what were called “blue boxes,” cheap devices that mimicked a certain frequency that allowed them to trick AT&T’s telephone system into making free long-distance calls. They also sold blue boxes before moving onto bigger and better ideas.

Years later, Jobs would say in an interview, “Experiences like that taught us the power of ideas…And if we hadn’t have made blue boxes, there would’ve been no Apple.”

Bill Gates and Paul Allen's Youthful Indescretion

Wu, writing about Jobs and Wozniak in the context of Aaron’s death, remarked, “The great ones almost always operate at the edge.” Bill Gates and his Microsoft co-founder Paul Allen may have even gone beyond that edge.

In his autobiography, Allen told the story of when the two future billionaires “got hold of” an administrator password at the company they worked at before starting Microsoft. The company had timeshared computers and Allen and Gates were getting charged for using them for their personal work.

The two men used the password to access the company's accounts and set about trying to find a free runtime account so that they could carry on programming without having to pay for the time. They also copied the account database for later perusal. However, management got wise to the plan.

"We hoped we'd get let off with a slap on the wrist, considering we hadn't done anything yet. But then the stern man said it could be 'criminal' to manipulate a commercial account. Bill and I were almost quivering."

They got off with a warning instead. The rest is history.

Protecting Innovators and Entrepreneurs

After their close calls, Gates, Allen, Jobs, and Zuckerberg went on to create three of the biggest technology companies in the world. While Aaron’s interests were not corporate, the technological innovation he helped create and foster during his short life makes clear how much we've lost with his passing. As Kevin Poulsen of Wired put it:

Worthy, important causes will surface without a champion equal to their measure. Technological problems will go unsolved, or be solved a little less brilliantly than they might have been. And that’s just what we know. The world is robbed of a half-century of all the things we can’t even imagine Aaron would have accomplished with the remainder of his life.

The CFAA and other computer crime laws shouldn’t allow overzealous prosecutors to lock away the next Steve Jobs or Aaron Swartz for years, or even to threaten to do so in order to force them to plead guilty. In all of their names, it’s time we bring some proportionality back to computer crime laws, both in their scope and in the penalties they provide.

The CFAA can (and should) reach serious computer intrusions that cause real damage, as should related laws criminalizing identity theft, stealing trade secrets, or engaging in massive fraud. But the law needs to recognize the difference between commercial criminals and those who are merely “testing the boundaries” or engaging in youthful indiscretions. Right now, it hands prosecutors the same sledgehammer regardless.